JOGESH CHANDRA ROY Vs. SASI KUMAR DE

JUDGEMENT

(1.) This appeal has arisen out of a suit for declaration of title and recovery of possession in respect of a piece of land. The land was recorded in the Record-of-Rights as comprising a tenancy held by the defendants. The certified copy of the Record-of-Rights which has been filed on behalf of the defendants shows that the area of the land is 113 acres and that it consists of a homestead, some ditches and a tank. In the column provided for recording the present rent there is a word which the learned Subordinate Judge felt considerable difficulty in reading. According to him, it may be read as binakar nishbar or ninakar though the last word is not one that is to be found in the dictionary. The learned Judge also says that the word may as well be read nankar or service tenure as was suggested on behalf of the plaintiff. From the plaint, however, it appears that the plaintiff's case was that the tenancy was a binakar chakran tenancy, that is to say, a chakran tenancy held without payment of rent. In the column in which the status of the tenant has got to be recorded the words "settled raiyats" appear. The plaintiff's case was that the defendants and their predecessors were charkan tenants holding without payment of rent, that they were bound to render services to the plaintiff and that recently they had refused to render such services and consequently the plaintiff instituted the suit for declaration of title and recovery of possession. The defendants on the other hand alleged that their predecessors formerly held the land on payment of rent of 14 annas per year but that the said rent was remitted on account of certain services which their predecessors had rendered to the plaintiff's predecessor. They endeavoured to support this defence of theirs by a letter dated 1849 which purported to state the fact that the defendants predecessors were paying, rent at 14 annas per year but that the said rent was remitted. This letter has been found by both the Courts below as being a fabricated document and it is not necessary to refer to it again in the course of this judgment. The Munsiff held that according to the Record-of-Rights, the defendants were settled raiyats and that inasmuch as certain other entries from the Record-of-Rights had been filed showing that the defendants were occupancy raiyats in respect of other lands in the village they were also occupancy raiyats in respect of this particular tenancy and that the incidents of this tenancy were to be governed under the provisions of Section 182, Bengal Tenancy Act, by those provisions of the Act which deal with occupancy raiyats. He held also that this presumption was not rebutted by anything which the plaintiff had produced and he therefore, dismissed the suit.

(2.) The Subordinate Judge held that the Record-of-Rights had a presumptive value but that the entry in it was vague and was proved to be -incorrect. He held further that the plaintiff had succeeded in proving that the defendants held the tenancy as a chakran tenancy and not in raiyati right. On these findings the learned Subordinate Judge decreed the suit. The defendants then "preferred" a second appeal to this Court which was dealt with by my learned brother Cammiade, J. He held that the Subordinate Judge had not properly dealt with the Record-of-Rights and had omitted to take into consideration its exact import and significance and that he had not appreciated the true position which was to the effect that the defendants were according to the Record-of-Rights, raiyats and not merely settled raiyats of the village. He held further that the evidence which the plaintiff had adduced for the purpose of rebutting the Record-of-Rights was more or less in admissible being statement of the opinion of the witnesses 1 who were examined in the case and that the said evidence was not sufficient to rebut the presumption. In this view of the matter Cammiade, J. allowed the appeal, set aside the decision of the learned Subordinate Judge and restored the decision of the Munsiff. The plaintiff has preferred this Letters Patent appeal.

(3.) The substantial contention that has been urged in support o? the appeal is to the effect that inasmuch as the learned Subordinate Judge held that the presumption arising from the entry in the Record-of-Rights had been rebutted this finding amounted to a finding of fact which should not in view of the circumstances of the Case have been interfered with by this Court in second appeal. On reading the judgment of the Subordinate Judge, it seems to ma that both in his appreciation of the effect of the presumption and in his treatment of the evidence that was adduced for the purpose of rebubting the same the learned Judge was in error.